Tate v. Citizens' Sav. Bank of Cabool

• Decision Date: 26 October 1929
• Parties: MARIA A. TATE, RESPONDENT, v. THE CITIZENS SAVINGS BANK OF CABOOL, MISSOURI, A CORPORATION, AND S. L. CANTLEY, COMMISSIONER OF FINANCE OF STATE OF MISSOURI, IN CHARGE OF SAID CITIZENS' SAVINGS BANK OF CABOOL FOR THE PURPOSE OF LIQUIDATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

21 S.W.2d 222

223 Mo.App. 957

MARIA A. TATE, RESPONDENT, v. THE CITIZENS SAVINGS BANK OF CABOOL, MISSOURI, A CORPORATION, AND S. L. CANTLEY, COMMISSIONER OF FINANCE OF STATE OF MISSOURI, IN CHARGE OF SAID CITIZENS' SAVINGS BANK OF CABOOL FOR THE PURPOSE OF LIQUIDATION, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

October 26, 1929

Appeal from the Circuit Court of Texas County.--Hon. W. E. Barton Judge.

AFFIRMED.

Judgment affirmed.

Farrington & Curtis and D. E. Moberly for appellant.

Hiett Lamar & Covert for respondent.

SMITH J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is a suit in which the plaintiff sued for the sum of $ 510.50 which she alleged was the balance due her on the purchase price of a lot or tract of land located in Cabool, Missouri, which she had sold to the Citizens Savings Bank of Cabool. She alleged that she had filed her claim for this amount with the Commissioner of Finance within the time allowed by law for filing claims, and that the same had been duly allowed by the Commissioner. In her petition, in addition to the prayer for judgment for that amount, she asked, "That the judgment for the same be made a special lien upon said premises and that a special execution be issued therefor, and such other and further relief as to the court seems just and proper in the premises."

The answer filed was a general denial and with the other allegations of defense as set out in the answer as follows:

"Admits that said Citizens Savings Bank of Cabool failed and closed its doors on the 17th day of March, 1927, and that said bank is now in the hands of the defendant, S. L. Cantley, Commissioner of Finance of this State for the purpose of liquidation.

"Defendants deny that said bank is indebted to plaintiff in any sum on account of unpaid purchase price of land described in plaintiffs petition and allege that said real estate was fully paid for at the time of the purchase thereof from plaintiff.

"Defendants further answering and as a special defense to plaintiff's cause of action allege that said Citizens Savings Bank of Cabool, Missouri, failed and closed its doors on the 17th of March, 1927, as aforesaid; that immediately thereafter all the assets of said bank were placed in the hands of S. L. Cantley, Commissioner of Finance for the purpose of liquidation under the laws of this State relating to insolvent banks.

"That thereafter due notice of such fact was given plaintiff and all creditors of said bank as required by law and that August 31, 1927, was fixed by the defendant, S. L. Cantley, as the last date for filing claims, said date being more than four months after the date of the first notice to creditors; that notice thereof was duly given to all creditors of said bank including the plaintiff herein.

"That notwithstanding said facts the plaintiff failed to file with the Commissioner of Finance in charge of said bank, the claim on which this suit is based, within the time specified as above and as required by section 11716, Revised Statutes 1919, of the State of Missouri and never at any time filed any such claim with the Commissioner of Finance in charge of said bank, the suit in question being the first notice of such claim.

"That by virtue of section 11716 aforesaid every claim must be filed with the Finance Commissioner within the time fixed for filing claims as provided by said section and that no suit can be maintained against said bank, unless such claim was filed as therein provided and the same was disallowed by the Commissioner, and brought within six months thereafter as provided by section 11720, Revised Statutes 1919. That by reason of said section the last day for filing suit on any claim filed against said bank would have been March 1, 1928; that this action was not commenced until the 30th day of April, 1928.

"Wherefore, defendants say that by reason of the aforesaid provisions of Article 1, Chapter 108, Revised Statutes 1919, of the State of Missouri, the claim of plaintiff is barred and that because thereof this action cannot be heard or maintained.

"Defendants further say that when said bank closed it owed the plaintiff on account of a demand deposit in her favor in said bank the sum of $ 35; that it owed on account of a time deposit in her favor in said bank the sum of $ 450 together with interest thereon in the sum of $ 12.75; that on the 22nd day of June, 1927, plaintiff filed her claim with the defendant, S. L. Cantley, as a general creditor as to each of the above items and the same were thereafter, to-wit, on the 22nd day of October, 1927, allowed by said Commissioner as general claims against said bank. That if said amount of indebtedness bears any relation to the claim of plaintiff in this suit she has long since elected to proceed against said bank as a general creditor, on a claim which makes no reference to the claim now made and that by reason of said election of remedy she is now barred from proceeding with the claim here sued upon.

"Further answering defendants say that plaintiff sold the land in question to defendant in the month of July, 1925; that plaintiff took no steps to enforce her lien now claimed until the filing of this suit, nor gave notice thereof; that the rights of numerous persons now creditors of said Citizens Savings Bank of Cabool have intervened since said time; that they had no notice of such claim of plaintiff; that plaintiff has been guilty of laches in presenting and enforcing said claim and is estopped from now asserting same and that it would be inequitable to the creditors of said bank to now permit her to have said claim of a vendor's lien established."

For reply the plaintiff denied each and every allegation in the answer contained.

The plaintiff's contention is that this is not an independent action but is a plenary action filed in the circuit court in aid of and auxiliary to the claims which had already been filed before the Commissioner of Finance and which had been by him allowed and presented to the circuit court to be by the circuit court disposed of according to the provisions of section 11722, Revised Statutes 1919, and that these claims having been allowed by the Commissioner and presented to the circuit court, were pending in the circuit court awaiting its action at the time this action of plaintiff was filed. The plaintiff contends that her petition shows this to be true; that after setting out the facts it would entitle the plaintiff to the equitable relief prayed, that is, to a lien on the lot in Cabool for the unpaid purchase price. The petition states the claims which were the basis of the action were duly filed with the Commissioner of finance within the time required by law and that the same were duly allowed by the Commissioner in the sum of $ 510.50, and the petition then prayed for a judgment for the identical sum allowed by the Commissioner and asked that such judgment be made a special lien on the real estate.

On the 8th day of June, 1928, the cause was presented to the court and the following judgment rendered:

"Now on this day, this cause coming on to be heard, the plaintiff appears in person and by counsel and the defendant appears by counsel and announces ready for trial, and this cause being submitted to the court on the pleadings and evidence adduced, and the court having seen and heard the same, and being fully advised in the premises, doth find the defendant, The Citizens' Savings Bank, before it went into the hands of the defendant, S. L. Cantley, for liquidation, purchased from plaintiff a house and lot in the city of Cabool, county of Texas, State of Missouri, described as follows, to-wit: Lot Thirteen (13), Block Three (3), Garst's second Addition; that at the time the said bank went into the hands of the said S. L. Cantley for liquidation, that there remained unpaid on the purchase price of said lot the sum of five hundred ten and 50/100 ($ 510.50) dollars.

"Wherefore, it is considered ordered, and adjudged by the court that the plaintiff recover of the defendant the sum of five hundred ten and 50/100 ($ 510.50) dollars, and that the same be a lien on said lot, and that a special execution be issued against the same for the said sum of five hundred ten and 50/100 ($ 510.50) dollars, and the plaintiff's costs herein laid out and expended."

Motion for new trial was filed, overruled, and appeal properly taken to this court.

The facts in this case as shown by the evidence are fairly set out by the defendants statement which is as follows:

"Defendant, Citizens' Savings Bank of Cabool, carried on a banking business at Cabool, Texas county, Missouri, until the 17th day of March, 1927, on which date it failed and has since said date been in the possession of the Finance Department of the State for liquidation.

"Notice was given by the agent in charge of said bank fixing August 31, 1927, as the last day for filing claims against this bank pursuant to section 11716, Revised Statutes 1919, and plaintiff received such notice.

"The records of the bank disclosed plaintiff had two accounts therein, one a time certificate dated August 23, 1926, in the sum of $ 450 due twelve months after date, with interest at five per cent; the other was a checking account in her name in the sum of $ 35.

On the 24th of June, 1927, plaintiff filed two claims with the agent in charge of said bank, one in the sum of $ 462.75, based on the aforesaid time certificate, which included the interest due thereon, and the other in the sum of $ 35 based on the demand deposit aforesaid, which said claims are Plaintiff's Exhibits "B" and "C," and shown in abstract of record. Both claims were filed as general claims only and no mention of preference or assertion of vendor's lien was...